On March 4, 2021, and March 17, 2021, the Department of Public Instruction (department) received complaints under state and federal special education law from #### (complainant) against the #### School District (district). This is the department’s decision regarding these complaints. The issues are whether the district, beginning April 16, 2020:
- Properly developed the individualized education program (IEP) of a student with a disability regarding annual goals and properly considered parent concerns; and
- Properly determined whether the student requires extended school year (ESY) services.
Whether the district properly developed the student’s IEP regarding annual goals and properly considered parent concerns.
School districts must provide each student with a disability a free appropriate public education (FAPE). Districts meet the obligation to provide FAPE, in part, by providing the special education services specified in the student’s IEP. In developing the student’s IEP, the IEP team must consider the concerns of the student’s parents for enhancing the education of their child. (34 CFR § 300.320; Wis. Stat. § 115.787 [a]). When developing the IEP for a student with a disability, the IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE.
During the time period applicable to this complaint, the student’s IEP team met three times. The IEP team held the student’s annual IEP team meeting on April 16, 2020. At this meeting, the student’s parents suggested adding annual goals or objectives in several areas. The district denied some of these requests, noting that either the student’s IEP already contained annual goals or benchmarks addressing the areas suggested, or that staff did not have baseline data to use to develop goals. District staff determined they would adjust the existing goals rather than add new ones. The district suggested baseline data would be gathered to support developing the student’s IEP to address some of the parents’ areas of concern. The student’s parents provided the district several paragraphs that were added into the parent concerns section of this IEP.
The student’s IEP team met to review and revise the student’s IEP on October 8, 2020. The parents again requested goals be added to address several areas of need. The district denied the requests. The district’s two explanations were that the student’s IEP already contained annual goals or benchmarks addressing foundational skills related to some areas suggested, or the district did not have sufficient baseline data. The district made a plan to collect baseline data to address areas of parent concerns that were not addressed in existing goals and objectives.
On December 21, 2020, the student’s IEP team met to consider information gathered after the October IEP meeting regarding the student’s work experience and how this could be used to develop an employability skills goal. District staff proposed a goal of improving employability skills with benchmarks addressing areas of challenge. The student was scheduled to participate in a vocational class second semester addressing several of the areas of challenge, and that additional data would be gathered based on the student’s participation in the course. The student’s parents requested a self-advocacy goal be discussed at this meeting. The district denied the request to add a new goal, indicating that self-advocacy skills were addressed in an existing goal developed at the October IEP team meeting. However, to address the parent’s concern, the team clarified the student would be provided adult assistance to initiate requests for help as a supplementary aid and service.
IEP teams must work toward reaching a consensus in developing a student’s IEP. The school district has the ultimate responsibility to ensure each student’s IEP includes the services the student needs to receive a FAPE. Parents are equal participants in IEP teams. While districts must consider this input, they are not required to incorporate all of the parents’ suggestions. The district responded to all parent requests during the IEP team meetings by citing places in the IEP where existing goals and objectives addressed the requests or by making plans to collect data to establish a baseline at a later date. District staff gathered additional data when needed, and based upon the information, the IEP team made adjustments to the student’s IEP. The parents’ concerns were appropriately considered and documented in the student’s IEP. The district properly developed the individualized education program (IEP) of a student with a disability regarding annual goals and properly considered the concerns of the parents.
Whether the district properly determined whether the student requires ESY services.
School districts are required to provide extended school year (ESY) services to a student when the student requires these services to receive a FAPE. If the parent or any other member of the IEP team expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine, on an individual basis, whether the student requires ESY services in order to receive FAPE (34 CFR § 300.106). A written notice must be given to the parents of a child with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child (34 CFR § 300.503).
At an IEP meeting held on May 20, 2020, the student’s IEP team decided the student needed extended school year services. The team documented the student would have speech therapy, reading instruction, and math instruction, with appropriate descriptions of the amount, frequency, location, and duration of the services. The services were to be provided at a combination of school and community locations.
The district offers a summer community-based enrichment program to students with disabilities in grades 8-11. The program has life skills and academic components, but the instruction is not based on participating students’ IEPs. The recreation department runs this program. Students are allowed to participate in the program for two summers between grades 8-11.
The student’s parents asked if the student could be included in the community-based enrichment program as well as in ESY. The district denied the request and explained the student could not participate in both ESY and the community-based enrichment program. In a notice to the parents dated May 26, 2020, the district provided this explanation: “students with disabilities in grades 8-11 are offered the opportunity to participate in a community-based enrichment program through the Recreation Department in place of ESY 2 x over the four-year period as an alternative to ESY. Your request to participate in both ESY and the community-based enrichment program was denied. This option is not available to any family in [the district]. The community-based enrichment program does include an academic component to allow for students to practice literacy skills and math skills.“ During interviews with the department’s investigator, district staff indicated the community-based enrichment program and ESY services were offered at the same time, from 8 am to 11:30 am.
The need for ESY is an individual determination by a student’s IEP team to address individual disability-related needs and ensure the student receives FAPE. In contrast, the district offers the community-based program to all students with disabilities in grades 8-11, and the content of the program is not based on any individual student’s need for FAPE. ESY and the community-based program are not comparable or interchangeable. A student may require ESY every year. Based on the notice above, that student would be effectively denied participation in the enrichment program. The scheduling conflict is under the district’s control. The district improperly made the student’s parents choose between participation in the enrichment program or provision of ESY services the student requires to receive FAPE. The district did not properly determine whether the student required ESY services.
The district must reconvene the student’s IEP team within 30 days from the date of this decision to consider whether compensatory services are required due to the student’s loss of ESY services during the summer of 2020. Within 10 days of the IEP team meeting, the district must submit to the department, documentation that compensatory services were considered. The district must also develop and submit a corrective action plan to the department within 30 days from the date of this decision to ensure that students do not lose access to ESY if they choose to also participate in the enrichment program. This corrective action plan must include a review, and if necessary, a revision of policies regarding participation in ESY and the community-based enrichment program, and an examination of student records to determine if any other student who participated in the enrichment program was denied ESY services during the summer of 2020. For any identified student, the IEP team must meet to determine if compensatory education is required.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support